S.P. Bhargava, J.

This appeal arises out of a suit for possession of 134.11 acres of Bhogra lands situate at mouza Salhepali, Tahsil Gharghoda, details whereof are given in the plaint. The suit was dismissed by the Second Civil Judge, Raigarh, on the ground that it was not maintainable. The plaintiffs have, therefore, come up in appeal.

One Ayodhyasingh was admittedly the Zamindar of mouza Salhepali at the relevant time. Up to 22-9-1942, one Samru was the Gaontia of the village, Salhepali, and was in possession of the suit lands, recorded in the revenue papers as Bhogra lands.

The plaintiffs' case was that Samru was ejected from his Theka of mouza Salhepali under the orders of the Tahsildar, Gharghoda, on 22-9-1942 on the ground that he had failed to pay the arrears of land revenue. This order of eviction was obtained by Ayodhyasingh. In pursuance of the order, Ayodhyasingh took poseession of all the suit lands through the Nazir of the Tahsil Court, Gharghoda, on 6-10-1942. This is shown by Exh. P-7 and Exh. P-8 on record. After obtaining possession of lands, Ayodhyasingh granted a patta of the village under a registered instrument to plaintiff No. 1 Harischandra on 7-10-1942. This patta is Exh. P-10 on record. Mutation was sanctioned by the Tahsildar in favour of Harischandra on 5-8-1948 and his name was recorded in the Khasra of the village for the year 1949. Two Khasra papers of the village for the year 1949 are Exhs. P-1 and P-2 on record.

The plaintiffs alleged that Garbhoosingh (defendant No. 1) and Ghandarai (deceased) who was originally defendant No. 2 forcibly took possession of the lands on 16-6-1949 with the help of some other persons. Ghandarai is represented in the suit by his minor Jankiprasad (respondent No. 2).

The plaint as laid originally was by plaintiff No. 1, Harischandra, and he claimed possession of the lands in suit in his Gaontia right on the ground that the previous Gaontia having been ejected from his theka also lost his Bhogra lands. Subsequently, however on 14-10-1952 the plaintiff, No. 1 made an application for leave to amend the plaint to introduce the plea that the suit lands had been settled by the Additional Deputy Commissioner, Raigarh, under section 54 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (No. 1 of 1951) (hereinafter referred to as the 'Abolition Act') with him and his two brothers. The plaintiff No. 1 was permitted to amend the plaint. The suit lands were settled by the Additional Deputy Commissioner, Raigarh, under his order, dated 26-8-1952, which is Exh. P-6 on record. Harish Chandra's two brothers are the plaintiffs Nos. 2 and 3.

The defendants denied that the plaintiff was ever the gaontia of mouza Salhepali. They further denied that Ayodhyasingh or plaintiffs were ever in possession of the suit lands between 22-9-1942 and 16-6-1949. The defendants farther contended that Samru was the gaontia of the village and defendant No. 2, the deceased Ghandarai was his co-sharer. It is alleged by the defendants that at the time of the passing of the Abolition Act, Samru's son Panchamsingh was the gaontia. Therefore, after Samru's death, Ghandarai and Panchamsingh are alleged to have been in possession of the suit lands in their own rights. It was urged that Ayodhyasingh had no right to alienate the lands under the Wazib-ul-arz. Lastly, it was contended that after the passing of the Abolition Act, this suit was not maintainable on behalf of the plaintiffs because the lands in question never formed part of their personal cultivation. They always remained in the personal cultivation of the suit lands.

The trial Court found that Ayodhyasingh was the Zamindar of the village Salhepali in 1942. He had transferred the village to plaintiff No. 1 under Exh. P-10, dated 7-10-1942 and as a result of the transfer, the plaintiff No. 1 became the gaontia of the village and entitled to the suit lands; that the plaintiff was put in possession of the s